1. The plaintiffs sued for the partition and separate possession of a share amounting to eight annas and ten and half pies in some properties known as the Shankar Khar and Shankar Wadi, and also for a declaration of their right to receive a similar share in half the revenues of the village of Sape. They also sued for an account of the recoveries made by defendant No. 1, who admittedly has been in possession of these properties; and by a purshis they dated their claim to an account from the year 1927. They have been given a preliminary decree for partition of the Shankar Wadi and Shankar Khar and also' a declaration of their right to receive the assessment claimed of the village of Sape, and the preliminary decree ordered accounts to be taken of the plaintiffs' share in the income received by the defendants from the year 1927. The Commissioner found a sum of Rs. 6,139-0-1 1/2 to be due to the plaintiffs on accounts, and by a final decree that sum was ordered to be paid by the defendants together with costs and future interest at six per cent. from the date of the suit on the principal sum of Rs. 6,139. The defendants have appealed both against the preliminary decree (First Appeal 155 of 1940) and against the final decree (First Appeal 294 of 1940).
2. Most of the defences raised to the suit have been abandoned in these appeals, and it is not necessary to do more than state the facts in very brief outline. It is not disputed that in 1862 three brothers, Trimbak, Ganesh, and Shankar, all sons of one Vinayak (the first two by his first wife and the last by his second wife) separated. The right of Shankar to a share of six annas and six pies was recognised, and Trimbak and Ganesh between them were given a share of nine annas and six pies. Some of the property was divided; but some of it was kept joint, including the property in the present suit. But it is not disputed that from that date the three brothers ceased to be members of a joint family and became tenants-in-common. Trimbak died in 1875, and on his son's death in 1879 no male member remained in his family. His widow Gangabai died in 1918. Ganesh died in 1871, and his widow adopted defendant No. 1 in 1883. Plaintiff No. 1 is the son of Shankar, who died in 1896; the other defendants Nos. 2, 3 and 4 are the sons of defendant No. 1 and plaintiffs Nos. 2, 3 and 4 are the sons of plaintiff No. 1. Defendants Nos. 5 and 6 are alienees.
3. In 1883 defendant No. 1 on adoption brought a suit with respect to some of the properties of the family, and as the result of that suit the vahivat of the property as provided for in the arrangement of 1862 was confirmed. In 1913 there was more litigation, and on the death of Gangabai in 1918 further litigation arose as to the rights of the plaintiffs' branch or the defendants' branch as reversioners. Pending that litigation an arrangement was made in 1926 between the plaintiffs and the defendants by which it was provided that defendant No. 1 should manage the property and pay an eight annas share to the plaintiff. But in the following year plaintiff No. 1 sued for possession of the property himself on the basis of the agreement having been broken by defendant No. 1. When the litigation as to the reversion was over, it was decided that the defendants and the plaintiffs each had a half share in the share to which Trimbak was entitled, Trimbak's share being half of nine annas and six pies. The plaintiff therefore claims to be entitled to eight annas and ten and half pies in the property in suit; and it is conceded that if he is entitled to anything at all, that is the share to which he is entitled. The only questions for decision in these' appeals are whether the plaintiffs are entitled to bring the present suit against the defendants for partition and possession of the property of which the defendants are in possession without at the same time bringing into hotchpot certain properties of which the plaintiffs are admittedly in possession, and secondly whether they can recover anything (and if SO, what) by way of mesne profits on accounts being taken. No other point has been pressed in the appeals.
4. The written statement of the defendants mentioned certain property in the possession of the plaintiffs and stated that it was necessary to bring these properties into hotchpot before the plaintiffs could be given any relief. In his reply to the written statement the plaintiff pointed out that some of these properties were watan properties, and according to the report of the Collector could not be made the subject of a partition; and they also said that one of the properties was theirs exclusively. There is probably a good deal of substance in these contentions of the plaintiff; but it is not necessary to decide the point, since in our view the plaintiffs are not bound to bring these properties into hotchpot at all. The ordinary rule applicable to suits for coparcenary property is that when a suit for partition is between coparceners it should embrace the whole family property, and a member of a joint family suing his coparceners for the partition of joint family property is bound to bring into hotchpot all the property that may be in his own possession in order that there may be a complete and final partition : see Mulla's Hindu Law, 9th edn., page 409. The rule is subject to exceptions arising out of convenience and from other causes. But it applies primarily to coparcenary property. The parties in this case are not coparceners but tenants-in-common; and in our view that may well make a substantial difference in the applicability of the' rule. In theory no coparcener has a share in any particular property, because (each coparcener; is an owner of all the family property; and this is the real basis for the rule as to the partition of coparcenary property. But there is no such basis for the application of the rule to property which is held in common. Indeed there seems to be no logical basis for it at all in such a case. Special circumstances do sometimes exist which make it necessary or desirable to apply the rule to suits relating to land held in common; and this bench decided one such case a fortnight ago in Laxman Motiram v. Rajaram Ganpat (1942) F.A. 129 , decided by Broomfield and Macklin JJ., on July 29, 1942 (Unrep.) and required the plaintiff suing for partition to bring into hotchpot all the property which was in the plaintiff's possession. But no ground of convenience or equity was put forward in the written statement to this suit, and the objection seems to have been based on purely technical grounds and is more obstructive than genuine.
5. In support of the defence on this point two cases have been cited in which the Courts have applied the coparcenary rule to suits relating to the partition of property held in common. They are Chhotibibi v. Pachhabi (1892) P.J. 112 and Rajendra v. Brojendra. (1922) 37 C.L.J. 191 In each of these cases the Court treated the coparcenary rule as generally applicable to suits for partition, and in the first of them (which was a suit between Mahomedans) the Court stated that (p. 117)
The relief sought for in these suits is a partition of the shares of the two plaintiffs; and such relief can only be given if all persons interested in the ancestral property are parties to the two suits and if the whole ancestral property is also brought into suit. Neither, of these conditions is satisfied.
6. On these grounds the suits were' held to have been rightly dismissed. The decision in this case of the High Court of Bombay seems to have been approved in Shivmurteppa v. Virappa I.L.R. (1899) 24 Bom. 128 where the ordinary rule relating to suits- for the partition of coparcenary property was applied. But that itself was a suit for the partition of coparcenary property. In neither of the other two cases cited does it seem that the possibility of there being any distinction between the two kinds of partition suits was present to the minds of the learned Judges who decided them. On the other hand there is clear authority to the contrary. In Pakkiri Kanni v. Manjoor Sahib I.L.R. (1923) Mad. 844 it was held that a suit for partition of common properties as distinct from joint properties was not liable to be dismissed on the ground that the suit did not include all the common properties available for partition. Their Lordships referred to certain cases in which an opinion had been expressed against the expediency of suits for partition of common property being brought without the whole of the property available for partition being included; but they went on to say (p. 846) :-
We have not been shown any decision that such suits are actually unsustainable, and we are not prepared) to hold that they are so. It is, we may point out, always open to the defendant in such a case as the present, if he thinks himself prejudiced by the exclusion of any property, himself to bring a suit in respect of it and have it tried with the suit already pending.
With these observations we entirely agree.
7. The next point relates to mesne profits. On behalf of the appellants it is contended that ordinarily in the case of joint enjoyment by the whole family, or enjoyment by different members of different portions of the family property, the Court will not, except in special circumstances, order an account to be taken of past transactions but will make a division of the property actually existing at the date of partition (Konerrav v. Gurrav) I.L.R. (1881) 5 Bom. 580 But even in suits for the partition of coparcenary property the ordinary rule does not apply if the plaintiff has been excluded; and a fortiori it will not apply if the plaintiff has been excluded from property which is held in common as distinct from property which is coparcenary property. But whether the plaintiff has or has not been excluded need not now be considered, since we agree with Mr. Joshi's contention on behalf of the plaintiffs-respondents that properly speaking mesne profits have not been awarded at all. What has been ordered is an account of the income received by a co-owner of property and a direction that the amount found to have been received of the share of the plaintiffs, should be given to them. It is nowhere suggested that the receipt of the money has been in any way wrongful.
8. The real question is whether this suit fort an account and for the recovery of the amount found due is barred by limitation, and, if it is not so barred, then what is the period for which the account ought to be taken and recovery ordered. On behalf of the appellants-defendants it is contended that the article properly applicable to this case is Article 62 prescribing a period of three years from the date when the money was received in suits for money had and received by the defendants for the plaintiffs' use. It was also suggested that the suit might be governed by Article 109; but in our view that article cannot possibly apply, since there is no question of the money having been wrongfully received. If Article 62 applied to the case, the order of the trial Court directing an account and allowing recovery from 1927 would no doubt be wrong, since this suit was not brought until the year 1935 after the plaintiff had given notice to the defendants demanding an account. It was also suggested that Article 89 might govern the case, since by the agreement of 1926 defendant No. 1 became an agent of the plaintiffs, and on the facts the suit would be barred if the agency came to an end (as has been found by the trial Court) in or about the year 1927. On behalf of the plaintiffs-respondents Mr). Joshi argues that whatever view may be taken of the facts of this case, Article 62 cannot apply, since' that article governs suits for a specific sum of money, whereas this is a case where it is impossible to award any sum of money to the plaintiffs until an account has been taken. He argues that if the defendants are to be taken to be the agents of the plaintiffs, then Article 89 would apply to the case. But if they are not taken to be the agents of the plaintiffs, then no article can apply to the case except the residuary Article 120, since there is no room for the application of Article 62. We have been referred to a number of cases; and in our view there is overwhelming authority for the' contention that Article 62 cannot be applied to a case where an. account has to be taken of money received by a co-owner of property as such. In Yerukola v. Yerukola I.L.R. (1922) Mad. 648. it was held that Article 62 cannot apply to such a case, since a suit for money had and received does not lie by one tenant-in-common against another who has received more than his share, and that the appropriate remedy in such a case is an action for an account. The basis of the decision appears at p. 660, where the reasoning of Baron Parke in an English case was approved, the reasoning being that the rents remained undivided and no one tenant-in-common was entitled to any specific part, and further the collecting tenant-in-common would be entitled to all just allowances, which could not be given in that form of action but could be given in an action for an account. The English case proceeded largely upon the provisions of an English Statute, but the principle was applied to the case before the Madras High Court. That case receives some limited support from our own High Court in Gabu v. Zipru. I.L.R. (1920) 45 Bom. 313 The decision in that case was that Article 89 applied and not Article 62. But from the remarks of Macleod C.J. it seems that if there had been no contract of agency, the Court would have applied Article 120 rather than Article 62 on principles similar to the principles governing the decision of the High Court of Madras. In Abu Shabid v. Abdul Hoque Dobhash  1 Cal. 110 there is direct approval of the decision of the Madras High Court, and it is stated that a suit by one joint owner of property against another for accounts is governed by Article 120 of the Indian Limitation Act and not by Article 62. There is also the direct authority of this High Court in Govinddas v. Ganpatdas : AIR1928Bom365 where again the decision of the Madras High Court was referred to with approval. Approval was also given to an earlier case of this High Court, Girjabai v. Narayanrao : AIR1925Bom148 where the Court had held that in such a case the article applicable would be either Article 89 or Article 120 according to the facts of the case. There are also two cases decided by the Privy Council, Mahomedally Tyebally v. Safiabai (1940) 43 Bom. L.R. 388 and Bolo v. Koklan : (1930)32BOMLR1596 . and in each case Article 120 was applied. The question whether Article 89 or Article 120 applies would depend upon the facts of each case. In 1926 there was the' arrangement by which the defendants could be regarded as having been appointed agents of the plaintiffs. But the plaintiffs' suit in 1927 shows (we think) that the agreement was then regarded as having come to an end. The plaintiff is suing for accounts not of the agency but from the year 1927, at which time the defendants cannot be regarded as agents of the plaintiffs, and therefore prima facie Article 89 would not apply to the case; and as no other specific article applies, the proper article to apply must be the residuary Article 120.
9. The next question is whether the suit is in time having regard to the fact that the appropriate Article is 120. The date from which time begins to run according to that article is the date of the accrual of the right to sue, and, according to the decision of the Privy Council in Bolo v. Koklan, that means when there was an infringement of or some clear or unequivocal threat to infringe the plaintiffs' right to an account. Until that has happened, no bar of limitation can arise at all. It is argued on behalf of the defendants that cancellation of the agreement by the plaintiff in 1927 amounts to an infringement of the plaintiffs' right; but there does not seem to be any logic in this contention. There is, so far as we can see, no evidence to show any refusal of the plaintiffs' right or any threat of infringement of his right until the defendants failed to reply to the plaintiffs notice in 1935. Indeed Mr. Joshi goes so far as to say that there has been no refusal even to this date, since the defendants' written statement did not specifically deny the plaintiffs' claim to an account except by a general request that the suit should be dismissed. There was litigation in 1927 and 1928, and it went on for some time longer than that. But nothing has been brought to our notice to show that the litigation was itself tantamount to refusal to give an account. As was pointed out by the Privy Council in Annamalai Chettiar v. Muthu Karuppan Chettiar (1931) 33 Bom. L.R. 168 a case governed by Article 120, the plea of limitation must fail when the defendant is unable to specify the particular date at which the claim to an account was denied by him. We think therefore that, the suit is in time.
10. The last question arising in these appeals is the period for which the account should be taken and recovery ordered. In the nature of things cases of this kind must be rare. We have been referred to a decision of a single Judge of this Court in Ayeshabai v. Ebrahim I.L.R. (1908) 32 Bom. 364 where in a suit governed by Article 120 the Court held that the plaintiff was entitled to accounts only for the six years preceding the suit. But we have also been referred to decisions on the other side. In two decisions from the unauthorised reports (Syed Levvai v. Syed Ammal : AIR1933Mad200 and Ayyakutti Thevan v. Sigappi Achi : AIR1928Mad1236 accounts were ordered for a period much longer than six years. But we think that any doubts that might arise on this point are set at rest by the fact that in Hurrinath Rai v. Krishna Kumar Bakshi I.L.R. (1886) Cal. 147 which was decided under the old Limitation Act but under one or other of the articles corresponding to the present Articles 89 and 120, the Privy Council ordered an account to be taken of an agency for the whole period of the agency, amounting to about twenty years. They did not in terms make an order that the amount found due should be recoverable; but presumably if an account for twenty years is to be taken, the amount found due on accounts taken over a period of twenty years is recoverable.
11. We think therefore that the learned Judge was right in ordering the account to be taken from the year 1927 and directing the defendants to pay the amount found due for that period. The appeals therefore fail on all the points argued, and they must be dismissed with costs.
12. I only desire to add a few observations on the interesting question of limitation which arises in this case, or rather on one aspect of that question. The authorities cited by my learned brother show beyond the possibility of dispute' that either Article 89 or Article 120 must apply to a suit such as this by one co-owner against another who has received more than his share of the income of the property. I agree with my learned brother that in the circumstances of this case Article 120 is the appropriate one.
13. But the question of the period for which the account is to be taken is by no means free from difficulty. In Ayeshabai v. Ebrahim I.L.R. (1908) 32 Bom. 364 . Mr. Justice Davar held that the account must be for six years only. He referred in the course of his judgment to a number of cases, but on examination it appears that few of them had any bearing on this particular point. Hemangini Dasi v. Nobin Chand Ghose I.L.R. (1882) Cal. 788 is a case where the suit for accounts was within time, and the Court limited the accounts to six years. But the decision is based on an older Calcutta authority, Saroda Pershad Chattopadhya v. Brojo Nauth Bhuttacharjee I.L.R. (1880) Cal. 910 and all that was held there was that Section 10 of the Indian Limitation Act did not apply and Article 120 did and that the suit would be barred if not brought within six years of the plaintiff's attaining his majority-a point which was left to be determined on remand. In Nanalal Lallubhoy v. Hurlochand Jagusha I.L.R. (1889) 14 Bom. 476 the suit was held to be time-barred, so the point I am considering did not really arise. In The Advocate General of Bombay v. Bai Punjabai I.L.R. (1894) 18 Bom. 551 there are some observations at p. 566 which suggest that Mr. Justice Farran thought that there could not be an account under Article 120 for more than six years. The point is not quite clear, but if he did think so it was evidently on the strength of Saroda Pershad v. Brojo Nath, which, as far as I can see, decided no such thing. In any case the' authority of these old rulings seems to be doubtful in view of the fact that it has only recently been made clear by the Privy Council case to which my learned brother has referred, that the time does not run under Article 120 until there has been an infringement by the defendant of the plaintiff's right to sue.
14. Reference has been made by my learned brother to Harrinath Rai v. Krishna Kumar Bakshi. In that case their Lordships of the Privy Council did not think it necessary to decide whether the article corresponding to the present Article 89 or that corresponding to the present Article 120 applied, but they held that the suit was in time in either case, and they ordered a general account of all dealings and transactions during the period of twenty years when the defendant acted as the plaintiff's Diwan. In another Privy Council case, Annamalai Chettiar v. A.M.K.C.T. Muthukaruppan Chettiar I.L.R. (1930) Ran. 645 the prayer in the suit, which was instituted in 1924, was for an account inter alia of moneys received in an administration suit started in 1906 and of expenses incurred therein. But the final decree of the High Court which was affirmed by the Privy Council appears from the report to have been only for an account of the proceeds of the administration suit, and it is not clear whether these moneys had come to the hands of the defendants more' than six years before 1924. Mr. Joshi for the respondents has cited two Madras cases not in the authorised reports (Syed Levvai v. Syed Ammal : AIR1933Mad200 and Ayyakutti Thevan v. Sigappi Achi : AIR1928Mad1236 , in which in suits under Article 120 accounts have been allowed for periods of ten and thirteen years respectively;
15. In suits for account under Articles 89 and 106 it is clear that the account which may be ordered covers the whole period during which the defendant has realised the plaintiff's money. There is nothing anomalous therefore in holding that in a suit for account under Article 120 also the account should be for the whole period. On principle indeed it would seem that it must be so. To say that a suit for an account is in time but the sum to be recovered must be limited to moneys received by the defendant within six years of the suit seems to me to presuppose a right in the plaintiff to sue to recover the money distinct from his right to sue for an account of the money. But no such suit is provided for by any article of limitation. According to the authorities a suit to recover money after taking an account such as the one with which we are concerned, is one for an account under Article 120, and in such a suit it cannot be disputed that the Court may not only ascertain what is due but make an order for payment thereof. I agree therefore that the order which the trial Court passed for accounts from 1927 should be upheld.